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IN THE SUPREME COURT OF UGANDA
HOLDEN AT
MENGO
Coram: Odoki C.J., Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba and Kato JJ.S.C.
CONSTITUTIONAL APPEAL NO.1 OF 2003
BETWEEN
1. BAKU RAPHAEL OBUDRA ] 2. OBIGA KANIA ] APPELLANTS
AND
ATTORNEY GENERAL RESPONDENT
(Appeal from the decision of the Constitutional Court (Mukasa-Kikonyogo
DCJ, Okello, Engwau, Kitumba, and Byamugisha JJA) dated at
Kampala
8th Nov. '02 in Constitutional Petitions No. 4/2002 and
No.6/2002).
JUDGMENT OF MULENGA, J.S.C.
I have read in draft, the judgment of my learned brother, Kanyeihamba JSC I
agree that the appeal ought to succeed, and I concur in
the proposed order to
remit the case to the Constitutional Court for determination on
merit.
The background to this appeal is well set out in the said
judgment. It will suffice here to mention that the appellants wish to appeal
to
the Supreme Court in respect of their election petitions, which the High
Court dismissed, and on appeal, the Court of Appeal confirmed the dismissals.
They are unable to appeal to the Supreme Court because S. 67(3) of the
Parliamentary Elections Act provides that the decision of
the Court of Appeal is
final. They petitioned the Constitutional Court to declare that provision
unconstitutional, but their petitions
were struck out for failure to disclose
any cause of action; hence this appeal. I should add and highlight three
features of the
appeal.
The first feature is that this single appeal
emanates from two constitutional petitions filed separately by Baku Raphael
Obudra and
Obiga Kania, now the appellants. There is no indication in the record
of appeal, however, if the two petitions were formally consolidated.
Indeed, the
record of appeal compounds the uncertainty because, apart from the ruling, the
rest of its contents reflect only Baku
Raphael Obudra, the 1st
appellant. Much of what I am to say in this judgment therefore, relates to his
petition. Nevertheless, it appears to be common ground
that the decision in this
appeal, will apply to both petitions as if they were formally consolidated in
the Constitutional Court.
The second feature is that the ruling that is the
subject of this appeal is on preliminary points of objection raised by the
original
respondents in the Constitutional Court, who however are no longer
parties in the case. Briefly, the proceedings were as follows:
The parties who were cited as respondents in the constitutional petitions, were the successful respondents in the election petitions. When the constitutional petition(s) came up for hearing in the Constitutional Court, those respondents through their respective counsel, raised and argued three preliminary points of objection, namely-
• That they were wrongly joined as respondents to the constitutional petition;
• That the petition does not disclose a cause of action because it presents no question requiring interpretation of the Constitution;
• That the petition was filed out of time.
Counsel
for the petitioner made submissions in reply on each of the three points. He
virtually conceded the first point and proposed
that the Attorney General be
substituted as the respondent. He opposed the other two points of objection. In
its ruling, the Constitutional
Court did not make any decision on the third
point of objection, which is therefore, not in issue in this appeal. It upheld
the first
objection, and struck out the respondents with costs. On the proposal
by counsel for the petitioner, to substitute the Attorney General as
respondent, the court said -"...in exercise of the powers conferred on
this court by Order 10(2), the Attorney General would have been added or
substituted as
a party to the petition."
The court did not order
the substitution, however, because in the end it struck out the petition.
Consequently, like in respect of
the third point of objection, there is no
appeal against the decision on the first point of objection. This appeal
therefore, arises
out of the court's decision on the second point of objection
only. The third feature is that although the Attorney General appears
in the
title of this appeal as the respondent, he successfully applied to be struck out
at the beginning of the hearing and so the
appeal proceeded without a
respondent.
Before considering the grounds of appeal, it is useful to
put the remaining point of objection in the proper legal perspective. First,
I
should reiterate here, what I said in Ismail Serugo vs. Kampala City
Council, Constitutional Appeal No.2/98 (SC) (unreported), that when
dealing with preliminary points of objection, it is always important and
useful,
to have regard to the procedural law under which they are raised. Distinction
must be made between points of objection as
to the form of a pleading and those
as to the substance of the case. It is one thing to object that a plaint does
not disclose a
cause of action, and quite another to object that the claim in
the suit is not maintainable in law. That is because the outcome is
different.
In the latter category, the court decides on the merits of the case on basis of
law only. The procedural rules applicable
to this category are O.6 rr.27 and 28,
and O13 r.2 of the Civil Procedure Rules. On the face of it, the point of
objection in the
instant case falls in the former category, where, subject to
one exception that I will revert to later in this judgment, the court
decides on
only the fate of the impugned pleading, without going into the merits of the
case. The relevant procedural law for that
category is O.6 r.29 and O.7 r.11 of
the Civil Procedure Rules.
The point of objection in the instant case
was raised informally at the commencement of the hearing. Neither counsel for
the respondents
stated the law under which they raised the objection. In the
ruling, however, the Constitutional Court rightly pointed out that in
determining whether the petition discloses a cause of action, regard must be had
to the following Civil Procedure Rules -
"Order 7 rule 1 provides that
'The plaint shall contain the following particulars: ...
(e) the facts constituting the cause of action and when it arose' And Order 11(1)...provides for the rejection of a plaint if it does not disclose a cause of action."
Although the ultimate decision on
the point of objection was to strike out the petition implicitly under O.7 r.ll,
the reasoning in
the ruling, leading to the decision, comprises two independent
aspects that need to be considered separately. The first aspect is
the holding
that the petition does not allege any matter that calls for interpretation of
the Constitution under Article 137 (3)
(a). The second aspect is the holding
that the appellant does not allege facts to show that the impugned statute
violates a right
guaranteed by the Constitution. The former is subject of the
third ground of appeal, while the latter is partly subject of the same
ground
and partly subject of the first ground. I find it more appropriate to dispose of
the former aspect, and therefore the third
ground of appeal, first.
In the third ground of appeal, the appellants contend that it was an error to
hold that the petition does not disclose a cause of
action. With the greatest
respect to the Constitutional Court, I unhesitatingly agree with the appellants'
contention. Clearly, Baku
Raphael Obudra's petition (which is the only one
reproduced in the record of appeal), discloses not only one, but two
constitutional
causes of action, where he -
pleads in paragraph 2 (d)
that
"S.67 (3) of The Parliamentary Elections Act, 2001 is inconsistent with Art. 140 of the Constitution of the Republic of Uganda, 1995 and is therefore unconstitutional and null and void pursuant to Article 2 (2) of the Constitution ";
and prays in paragraph 3 for
(a) declarations that the said section -
(i) is inconsistent with (the said Article 140 and therefore null and
void) and
(ii) infringes on the petitioner's right (under the Constitution); and
(b) an order declaring (his) right of appeal to the Supreme Court.
In a nutshell, the petition complains that S.67
(3) of the Parliamentary Elections Act, 2001, is inconsistent with Article 140
of
the Constitution, and infringes on the petitioner's constitutional right to
appeal to the Supreme Court; and it prays for, inter alia,
declarations to that effect. These are two causes of action, the one
under Article 137(3)(a), and the other under Article 50(1) of
the Constitution.
The Constitutional Court rightly sought guidance from decisions of this Court
in Major-General Tinyefuza vs Attorney General, Constitutional
Appeal No. 1/97 (SC)(unreported), and Ismail Serugo vs Kampala City
Council (supra), on the test for determining if a cause of action is
disclosed in a constitutional
petition.[1] However, with the
greatest respect to the learned Justices, I think that they erred in the
application of the test. This is evident
from the ruling of the court. After
reproducing several paragraphs from the petition, the learned Justices said
-
"According to the above pleadings the petitioner is alleging that an
Act of Parliament is inconsistent with the provisions of the
1995 Constitution.
This means that the petition is based on the first limb of Article 137...."
In my view, that was a correct identification of the
cause of action. However, after reproducing the provision in Article 137(3)(a)
and counsel's arguments, the court inexplicably went on to say -
"The
petitioner is alleging that on 17th May 2002 he lost an appeal in the
Court of Appeal and could not proceed to the Supreme Court because of section
67(3) (supra). In
order to succeed he had to show by his pleadings that the act
of losing an appeal 17.5.02 raises a matter for constitutional interpretation.
We are saying so, because the petitioner claims that the cause of action accrued
to him on that day, and not on the 20th April 2001 when the Act came
into force. In our view, the act of losing an appeal per se does not call for
interpretation of the
Constitution."
I must confess that
I am unable to comprehend the court's deduction that in order to succeed, the
appellant "had to show by his pleadings that the act of losing an
appeal on 17.5.02 raises a matter for constitutional interpretation".
The details about filing and losing the appeal, like those about filing and
losing the election petition, and finally about the wish
to appeal further, were
included in the petition, not for any interpretation, but to provide the
background and framework of the
petition. What obviously required constitutional
interpretation, and which the court had just highlighted, was the provision in
Article
140 of the Constitution, and in particular the effect thereof, if any,
on section 67(3) of the Parliamentary Elections Act. That,
for purposes of a
petition under Article 137(3)(a), is a sufficient cause of
action.
When the court averted to what constituted the second cause
of action, it again appears to have wrongly digressed to the loss of the
appeal.
The court first observed -
"Admittedly, the petitioner is an aggrieved party because (he)
lost an appeal. This alone is insufficient. In the case of SERUGO
(supra), it was held that it is not an essential element for the petitioner to
be aggrieved by an act or omission before bringing
a
petition."
Needless to say, for purposes of the constitutional
petition in issue, there was a grievance in respect of the second cause of
action.
However, the grievance was not the loss of the appeal. It was the
failure to appeal to the Supreme Court. Be that as it may, the
court examined
excerpts from Article 132 of the Constitution, and section 67(3) of the
Parliamentary Elections Act, and concluded
that the petition did not show that
the section violated the petitioner's guaranteed right. In my view, however, as
I said earlier
in this judgment, the particulars and allegations in the petition
sufficiently disclose a second cause of action. In the petition,
it is alleged
that under Article 140 of the Constitution the petitioner has a right of appeal
to the Supreme Court, but that he "cannot appeal as the right of
appeal to the Supreme Court has been barred by section 67(3)." It is
then prayed, inter alia, that the court should declare that the
said section "infringes on the (petitioner's) rights under the Constitution"
and specifically declare that he has the right to appeal to the Supreme
Court. These are the averments that disclose a cause of action
under Article
50(1) of the Constitution. In my view therefore, the third ground of appeal
ought to succeed.
The complaint in the first ground of appeal is that the
Constitutional Court decided a substantive issue in the petition, before hearing
the appellants' case on that issue. They contend that the preliminary hearing
did not involve a trial of the issue on the right to
appeal to the Supreme
Court, and yet in the ruling the court virtually decided that the appellants did
not have that right. This
is clearly implicit in the part of the ruling where,
before concluding that the petition does not disclose a cause of action, the
court observed -
• that the right of appeal to the Supreme Court is governed by Article 132 of the Constitution, which provides, inter alia, that it shall be the final court of appeal, and that appeals shall lie to it from "such decisions of the Court of Appeal as may be prescribed by law ", and
• that s.67(3) of the Parliamentary Elections Act does provide that: "The decision of the Court of Appeal under that section is final."
It is immediately after those observations
that the court went on to hold -
"According to the principles stated in Serugo (supra), the petitioner had to show that the provisions of the section, he is complaining about, violated a right guaranteed by the Constitution. The instant petition does not allege those facts, which allegedly contravene the provisions of the Constitution or those that are inconsistent with its provision. For those reasons we think the petition does not disclose a cause of action."
It seems obvious to me that this holding was
not based on a finding that the petition lacked averments showing a cause of
action.
Rather, it was based on the learned Justices' conclusion from the
observations I have just summarised, that the petitioner had no
right of appeal
to the Supreme Court. That conclusion, however, was premature. Whether he has
such right or not, and if he has, whether
the said section 67(3) violates the
right or not, are issues to be determined after due trial.
Earlier in
this judgment, I alluded to an exception to the general rule that upon an
application to strike out a plaint for not disclosing
a cause of action, the
court ought to restrict its ruling on the defect of the plaint and not to decide
on the merits of the case.
The exception is where the court is satisfied that
"the cause of action" disclosed is clearly not maintainable in law. [See
the dicta in Nurdin Ali Dewji & Others vs G.M.M.Meghji &
Others (1953) 20 EACA 132, and in Ismail Serugo's
case.(supra)]. I am not satisfied that this case falls within
that exception. First, the cause of action under Article 137(3)(a) i.e. the
allegation
that section 67(3) is inconsistent with Article 140, is clearly
maintainable irrespective of whether or not it would be upheld. The
appellants
ought to be allowed to present their case first. Secondly, I would not hold that
the cause of action under Article 50(1)
is not maintainable in law, before the
issue in the first cause of action is answered in the negative. In the
circumstances, the
first ground of appeal also ought to succeed.
I think
the second ground of appeal is misconceived. The complaint there, that the
Constitutional Court failed to address Article
140, is the antithesis of the
first ground of appeal. The import of that article is the substantive issue to
be decided upon the
hearing of the merits of the case. The ground therefore,
ought to fail. Before leaving this case, I am constrained to observe that
in my
opinion, no advantage is derived from taking on preliminary points of law, in
cases such as this, which by their very nature,
are to be decided on points of
law only. What is intended to be a short cut, invariably leads to mixing up
issues, and ultimately
to delaying justice and increasing costs. I hope the
instant case will serve to illustrate the point. A trial court should not
hesitate
to reject or postpone such objections to avoid confusing issues. It
seems to me for example, that the points of objection in the
instant case ought
to have been separated. The first point of objection, which the appellants did
not seriously contest, and which
in any case, was the only one that concerned
those respondents, could have been disposed of alone. Strictly those respondents
had
no locus standi to raise the rest of the objections. Those should have been
left to be more conveniently disposed of with the substantive
issues.
JUDGMENT OF ODER. JSC
I have had the benefit of reading in draft the judgment of Kanyeihamba, JSC. I agree with him that appellant's petition in the Constitutional Court disclosed a cause of action. Article 140 of the Constitution appears to presuppose that the right of appeal in a parliamentary election petition exists not only in the Court of Appeal but also in the Supreme Court. In so far as section 67(3) of the Parliamentary Elections Act 2001 limits that right to the Court of Appeal only, S. 67(3) appears to be in consistent with article 140 of the Constitution. That is what the appellants alleged in their petitions. A person aggrieved by the provisions of section 67(3) is entitled, in my view, to petition the Constitutional Court under article 137(3) of the Constitution for a declaration that section 67(3) of the Parliamentary Election Act is inconsistent with the Constitution. Whether there is merit or not in such a petition, it is for the Constitutional Court to decide. The appellant's appeal to this Court, therefore, succeeds. Their Constitutional Petition to the Constitutional Court should be heard on merit.
As there was no respondent in the appeal. I would make no order as to costs.
JUDGMENT OF ODOKI, CJ
I have had the advantage of reading in draft the judgment of Kanyeihamba JSC
and I agree with it and the reasons he has given for
allowing the application by
the Attorney General. I concur in the order he has proposed as to costs. The
background to this appeal
has been summarised by Kanyeihamba, JSC and I need not
repeat it.
In Ground 3 of the memorandum of appeal, the petitioners complained that the learned trial judges erred when they held that the petition did not disclose a cause of action. In their conclusion, the learned Justices of Appeal stated,
"According to the principles in Serugo (supra) the petitioner had to show that the provisions of the section he is complaining about violated a right guaranteed by the Constitution. The instant petition does not allege those facts, which alleged contravene the provisions of the Constitution or those that are inconsistent with its provision. For those reasons we think the petition does not disclose a cause of action. There would be nothing to interpret. The petition would be dismissed with costs.
In Serugo vs Kampala City Council, Constitutional Appeal No.2 of 1998, this Court pronounced itself on the meaning of cause of action as regards Constitutional petitions. Generally, the main elements required to establish a cause of action in a plaint apply to a Constitutional petition. But specifically, I agree with the opinion of Mulenga, JSC in that case that a petition brought under Article 137 (3) of the Constitution "sufficiently disclose a cause of action if it describes the act or omission complained of and shows the provision of the Constitution with which the act or omission is alleged to be inconsistent or which is alleged to have been contravened by the act or omission and pray for a declaration to that effect."
In my opinion, where a petition challenges the constitutionality of an Act of
Parliament, it sufficiently discloses a cause of action
if it specifies the Act
or its provision complained of and identifies the provision of the Constitution
with which the Act or its
provision is inconsistent or in contravention, and
seeks a declaration to that effect. A liberal and broader interpretation should
in my view be given to a Constitutional petition than a plaint when determining
whether a cause of action has been established.
In paragraph 2 of his petition, the 1st appellant stated, inter alia,
"(c) The Petitioner is aggrieved and dissatisfied with the judgment and decision of the Court of Appeal and wishes to appeal against the said decision and judgment on issues involving points of law of great, general and public importance requiring to be heard and decided upon by the Supreme Court has been barred by S. 67(3) of the Parliamentary Elections Act 2001.
(d) S. 67(3) of the Parliamentary Elections Act 2001 is inconsistent with Article 140 of the Constitution of the Republic of Uganda 1995 and is therefore unconstitutional and null and void pursuant to Article 2(2) of the Constitution."
In the prayer,
the 1st appellant requested the court to make a declaration, among
other things, that Section 67(3) of the Parliamentary Elections Act infringes
on
his rights under the Constitution. The petition in respect of the 2nd
Appellant was in similar terms.
From the pleaded facts, it is clear that the appellants specified the provisions of the Act of Parliament which they alleged were inconsistent with the particular provisions of the Constitution. Article 140 of the Constitution provides,
"(1) Where any question is before the High Court for determination under Clause 1 of Article 86 of this Constitution, the High Court shall proceed to hear and determine the question expeditiously and may for that purpose suspend any other matter pending before it.
(2) This Article shall apply in a similar manner to the Court of Appeal and the Supreme Court when hearing and determining appeals on questions referred to in Clause (1) of the Article."
Article 86 of the
Constitution confers jurisdiction on the High Court to hear election petitions
in respect of members of Parliament
or election of Speaker or Deputy Speaker of
Parliament. Clause (2) of Article 86 allows a person aggrieved by the decision
of the
High Court to appeal to the Court of Appeal. On the other hand Section 67
(3) of the Parliamentary Elections Act 2001 provides that
"the decision of
the Court of Appeal under this Section shall be final." In view of the
apparent conflict between Article 140 of the Constitution and Section 67(3) of
the Parliamentary Elections Act, the
matter called for judicial interpretation
to establish whether Section 67(3) of the Parliamentary Elections Act was
inconsistent
with Article 140 of the Constitution and therefore null and void in
accordance with Article 2(2) of the Constitution. The petitioners
were entitled
to obtain a decision of the Constitutional Court on the merits of their
petitions, but they did not. The consequence
was that the Constitutional Court
failed to determine the issue whether the appellants had a right of appeal to
the Supreme Court.
It is for this reason, in my view, that the second ground of
appeal ought to fail because the court did not rule on the substantive
matter of
jurisdiction.
As the majority of the members of the Court agree with the judgment and
orders proposed by Kanyeihamba, JSC, this appeal is allowed
in part. It is
ordered that the petition be remitted back to the Constitutional Court for
determination on the merits.
There will be no order as to costs.
JUDGMENT OF KATO, JSC.
I have had the benefit of reading draft judgment of my learned brother
Kanyeihamba, JSC,. I agree with his conclusions and reasons
for the
same.
With due respect to the learned Justices of the Constitutional Court, it is
not true to say, as their Lordships did, that the petitions
did not disclose
a
cause of action. There is no doubt that paragraph 2(d) of the petitions
clearly shows that there is a cause of action. The matter
raised in
that
paragraph complaining that section 67(3) of the Parliamentary Elections
Act 2001 is inconsistent with the provisions of article 140
of the
constitution
posed an issue, which the Constitutional Court had to decide.
The court did not resolve that issue. I would allow the appeal with
no order as
to the costs
of the appeal.
JUDGMENT OF KAROKORA, JSC.
I have read in draft the judgment prepared by my learned brother, the Hon.
Justice Kanyeihamba, JSC, and I agree with the facts as
set out in his judgment.
1 also agree with him that in a Constitutional Petition brought under Article
137(3) of the constitution,
a cause of action is disclosed if the Petitioner
alleges that an Act of Parliament or any other law or anything in or done under
the authority of any law , is inconsistent with or contravenes any provisions of
the constitution and then prays that the provisions
of the Act be declared null
and void. See the majority views of Justices of the Supreme Court in
Attorney General vs Major General David Tinyefuza,
Constitutional Appeal No. 1 of 1997 (S.C) and Serugo vs
KCC. Constitutional Appeal No. 2 of 1998 (S.C).
The complaint in this petition was that because Section 67 of the
Parliamentary Elections Act, 2001 bars appeals by any aggrieved
party in an
election petition to the Supreme Court, the petitioners decided to move the
Constitutional Court to challenge the provision
of Section 67 of the
Parliamentary Elections Act, 2001, under Article 137(3) of the constitution as
being inconsistent with Article
140 of the constitution and therefore prayed
that it be declared null and void.
I also agree with him that when the pleadings in this appeal are read
together with Articles 140 and 86(1) of the constitution, it
becomes apparent
that the petitioners had laid a foundation for the cause of action in their
petitions to justify being allowed to
proceed and prove whether or not a right
of appeal exists.
In the result, ground 3 must succeed. The disposal of ground 3 would dispose
off the entire appeal.
Dated at Mengo this 26th day of November 2003
JUDGMENT OF TSEKOOKO, JSC.
I have had the benefit of reading in draft the judgment prepared by my
learned brother, the Hon. Dr.Justice Kanyeihamba, JSC. The
facts of the appeal
have been set out in his judgment. Having considered the relevant facts and the
law, I agree with the conclusions
of the Constitutional Court. I shall first
allude to the application.
Before the appeal was cause-listed for
hearing, the Attorney General filed a notice of motion under Rules 77 and 41, of
the Rules
of this Court, praying that the appeal be struck out on grounds that
he was wrongly cited as a respondent to the appeal. We heard
Mr. Bireije,
Commissioner for Civil Litigation, who contended that because the Attorney
General was not a party to the petition in
Constitutional Court, it was wrong
for the appellant to cite him as respondent in the Appeal and therefore the
appeal should be struck
out. In the course of his submissions, Mr. Bireije also
raised an alternative point that if we can not strike out the appeal, we
should
strike out the Attorney General as respondent, since he was not a party at the
trial. Mr. Rwaganika, counsel for the appellants,
initially opposed striking out
the Attorney General but alternatively conceded that the Attorney General could
be struck off as a
respondent leaving the appeal to be prosecuted ex parte. We
struck out the Attorney General, mainly because he was not a party to
the
proceedings in the court below and also because we were not persuaded why the
Attorney General should be a respondent to this
appeal.
Regarding the
argument that because there is no respondent to the appeal, the appeal must be
struck out, Mr. Bireije did not cite
any authority. We have not seen any. So we
heard the appeal ex-parte. We awarded the Attorney General the costs occasioned
by filing
the notice of motion. I now turn to the appeal.
I will first consider grounds 1 and 2 which are framed as follows: -
1. The learned trial Judges misdirected themselves when they ruled on the substantive matter of the jurisdiction of the Supreme Court before they were addressed on the matter. 2. The trial Judges erred when they failed to address themselves to Art.140 of the Constitution which is a specific provision relating to the jurisdiction of the Supreme Court in election cases and on which the petition was founded.
I think that these two grounds in away contradict each other. They should
have been argued in the alternative. Be that as it may,
I noticed from the
record that in his address to the Court below, Mr. Rwaganika referred to section
67 (3) of the Parliamentary Elections
Act, 2001 (the Act) and to Art.140 of the
Constitution. In that regard the reference to the jurisdiction of this Court by
the Justices
of the Constitutional Court in their ruling was inevitable. I do
not, with respect, agree that the Constitutional Court failed to
address Article
140.
According to Mr. Rwaganika, Article 86 of the Constitution is
inconclusive on whether or not the Supreme Court has appellate jurisdiction
in
election petitions. In his view it is Art.140 which is conclusive because it
provides procedure for this Court to hear such appeals
expeditiously. I am not
persuaded by these arguments and I think that the scheme of the drafting of the
Constitution supports my
view that Art.86 is conclusive. The Article is under
chapter six of the Constitution. Under the chapter are listed various articles
concerned with the various aspects of the legislature. The article makes
provisions for the hearing and determination of questions
of membership of
Parliament. Clause (1) of Article 86 confers on the High Court jurisdiction to
hear and determine disputes arising
from the election of the members, the
Speaker and the Deputy Speaker of Parliament. Clause (2) confers on the Court
of Appeal jurisdiction
to hear appeals arising from decisions made by the High
Court under clause (1). The former clause reads: "(2) A persons aggrieved
by the determination of the High Court under this Article may appeal to the
Court of Appeal"
Since the whole Article is concerned with
hearing and determination of election petitions in Courts, it is my considered
view that
if the Constituency Assembly had intended to provide for second
appeals to continue into this Court, the Assembly would have enacted
a provision
to that effect here. There is none. That means Art.86 is definite and
conclusive. The conclusiveness is emphasised in
clause (3) which authorised
Parliament to make a law which sets out the procedure and circumstances under
which election petitions
to the High Court and election appeals to the Court of
Appeal are to be made.
Accordingly in March 1996, barely five months after the promulgation of the Constitution, the National Resistance Council (NRC) which was the Interim Parliament, enacted the Parliamentary Elections (Interim Provisions) Statute, 1996, (Statute 4 of 1996). In that statute, there is S.96 which is identical in every respect to section 67 of the Parliamentary Elections Act, 2001 (PEA). When the NRC enacted S.96 of the statute, it complied with Art.86 (3) of the Constitution. In its wisdom, the NRC appears to have seen no need to provide for second appeals to this Court. Parliament which followed the NRC simply lifted the words of S.96 and re-enacted them in S.67 of the PEA, 2001.
It is clear to me that when in 2001 Parliament enacted the Parliamentary
Elections Act, 2001 and included S.67 (3) which makes the
decision of the Court
of Appeal final, Parliament was also complying with the letter and spirit of
Art.86 (3). I do not, with respect,
agree, as argued by Mr. Rwaganika, that
Article 86 is inconclusive. There is nothing inclusive about its
provisions.
Further, Art.132 (2) (3) shows clearly that appellate
jurisdiction of this Court
can only be created by law. The article reads:
-
"An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law"
Jurisdiction cannot be created by mere inference. Moreover, in my opinion
Article 140 of the Constitution merely refers to the procedure
and standards
which must be adopted in hearing election disputes. Clause (2) thereof does not
confer any jurisdiction on any Court.
In this connection, it should be noted
that jurisdiction of the High Court to hear cases and appeals not related to
petitions, is
conferred by Article 139 and not Article 140. Similarly,
jurisdictions of the Court of Appeal and of the Supreme Court to hear and
determine non- election cases and appeals are conferred by Articles 134 (2), 137
and 132 respectively. Clearly therefore in election
matters, the jurisdiction is
conferred on the High Court and the Court of Appeal only by Art.86 and of course
S.67.
When Parliament enacted the Parliamentary Elections Act, 2001 and included
the provisions of Section 67 (3), Parliament must have
been aware of the above
mentioned existing rights of appeal conferred by the Constitution. Sub section
(3) reproduced the intention
of Art 86 (2). Therefore, after promulgation of the
Constitution, in my view, the limiting of the right of appeal by section 96 (3)
of statute 4 of 96 and subsequently by S.67 (3) of the Act of 2001 must have
been deliberate. I think therefore that Article 140
of the Constitution merely
urges Courts to expedite hearing of election petitions disputes but does not
create a substantive right
of appeal. Nor does it confer jurisdiction on this
Court. If the latter were the case, I do not see any sound reason why that
jurisdiction
could not have been provided in Article 132 where the appellate
jurisdiction of the Court is set out. Or better stills the jurisdiction
could
have been provided under Art.86. It is also instructive to note that Art.140 of
the Constitution enacts part of Clause 169
of the Odoki Draft Constitution. At
the time the Draft Constitution was produced, the current Court of Appeal was
not anticipated.
Appeals from High Court were expected to go to the Supreme
Court of the time, not the present one. Constituency Assembly delegates
who
created the Court of Appeal must have been satisfied that it should be the last
court of appeal in election matters. I am of
the considered opinion that the
inclusion of the words "Supreme Court" in Art 140 (2) must have
been left in the constitution by inadvertence and I think it is superfluous and
does not confer a right of
an election appeal. Grounds one and two must
therefore fail.
Although the view I express in this paragraph is not
material in deciding this appeal, I think that creating a number of appeals in
election petitions would be imprudent and can create unnecessary suspense both
to the parties in the dispute and the Constituents.
If there is real need for
election appeals to be decided by this Court, the law can be amended so that
appeal in election petitions
come straight to this Court after trial. In that
way speed in resolution of election matters would be achieved.
I think this
conclusion would dispose of this appeal and I would dismiss the appeal with
costs.
I will briefly comment on ground three.
The complaint is that the
Constitutional Court erred in holding that no cause action was disclosed. I
agree that in a number of cases
decided by this Court, the Court has held the
view that normally in constitutional petitions brought under Art.137 (3) of the
Constitution,
a cause of action is disclosed if the petitioner alleges the act
or omission complained of and cites a provision of the Constitution
which is
alleged to have been contravened by the act or the omission complained of and
then prays for a declaration: See Attorney General Vs Major
General.D.Tinyefunza Constitutional Appeal 1 of 1997 (S.C) and
Serugo Vs Kampala City Council, Constitutional Appeal No. 2 of
1998 (S.C) (unreported). But I do not think that in these cases we have laid
down a binding principle
that will apply to all constitutional petitions. Every
petition will have to be decided on its own facts.
In the proceedings
before us, the petitioners alleged in their constitutional petitions that S.
67 (3) of the Parliamentary Elections Act, 2001 was inconsistent
with Art. 140 of the Constitution, in that whereas the latter
appears to allow losers of election petitions in the High Court to appeal up to
the Supreme Court, the
Act does not allow Election Petition Appeals to proceed
up to the latter Court. On the face of it, the appellants would appear to
have,
by their pleadings in the Constitutional Petitions, raised and laid the
foundation of the necessary components of a constitutional
cause of action.
However my discussions of grounds 1 and 2 shows that on the examination of the
law, the appellants did not have
a right of appeal under Art. 140 which could be
violated and, therefore, they had no cause of action. So the decision of the
Constitutional
Court is correct. Ground three must therefore fail.
I would dismiss this appeal. I would make no order as to costs.
JUDGMENT OF KANYEIHAMBA. J.S.C.
The background to this appeal may be summarised as follows:
The
petitioners, Baku Raphael Obudra and Obiga Kania were candidates who contested
in separate constituencies in the Parliamentary
Elections which were held
throughout the country on the 26th day of June, 2001. Each lost in
his constituency. Being dissatisfied with the results, each filed an election
petition in the High
Court at Gulu. Each petition was heard by a different
judge. On 23/01/2002, the High Court (Kania, J.) dismissed the petition
of Baku
Raphael Obudra and on the 24/01/2002, Aweri Opio, J. dismissed the petition of
Obiga Kania. They both filed separate appeals
to the Court of Appeal which were
dismissed with costs.
Wishing to appeal to the Supreme Court which is the
highest appellate court in this land, the petitioners were advised that the law
did not permit them to appeal beyond the Court of Appeal. They therefore decided
to challenge this legal restriction on what they
considered to be their right.
They subsequently filed Constitutional Petitions Numbers 4 and 6 of 2002 in the
Constitutional Court
under Article 137 of the Constitution. The petitions were
dismissed. Hence this appeal.
The Memorandum of Appeal in this court
contains three grounds framed as follows:
1. The learned Justices of Appeal misdirected themselves when they ruled on the substantive matter of the Jurisdiction of the Supreme Court before they were addressed on the matter.
2. The learned Justices of Appeal erred when they failed to address themselves to Article 140 of the Constitution which is a specific provision relating to the jurisdiction of the Supreme Court in election cases and on which the petitions were founded.
3. The learned Justices of Appeal erred when they held that the petition does not disclose a cause of action.
Prior to the
causelisting of the appeal for hearing, the Attorney General who was then listed
as a respondent to the appeal filed
Miscellaneous Application No. 1 of 2003
under Rules 41 and 77 of the Rules of this Court seeking an order to strike out
the appeal
on the ground that the Attorney General was wrongly joined as a party
as he had not been a party to Constitutional Petitions Nos.
4 and 6 of 2002. We
heard counsel for the parties and granted the application and ordered that the
Attorney General be struck out
as a respondent. We thereafter heard the appeal
ex parte, that is to say without a respondent. We reserved our reasons
for striking out the Attorney General as respondent.
We do so now. In the petitions in the High Court, the Attorney General was
not cited by either petitioner as a party. In the petitions
before the
Constitutional Court, Petitions Nos. 4 and 6, the appellants sought leave to
join the Attorney General as a respondent
and the learned Justices of the
Constitutional Court observed, obita dicta, that had the appeal proceeded
before them they would have ordered that the Attorney General be joined in the
proceedings as a party.
Consequently, in the appeal to this court,
the Attorney General was added to the parties as a respondent. We agreed with
the submissions
of Mr. Bireije, Commissioner for Civil Litigation for the
Attorney General that since the learned Attorney General had not been enjoined
as a party in the High Court petitions, it would be unfair to join him at later
stages, unless with his consent. It is for this reason
that we allowed the
application to strike out the learned Attorney General as a
respondent.
Mr. Rwaganika, counsel for the appellant argued grounds 1
and 3 together and ground 2 separately. On grounds 1 and 3, counsel contended
that the Justices of Appeal erred in holding that there was no cause of action.
Counsel submitted that according to the decisions
of this Court in such cases as
the Attorney General v. Major General Tinyefuza, Const. App. No. 1 of
1997 (S.C.) and Serugo v. Kampala City Council, Const. App. No. 2
of 1998 (S.C), all that a petitioner has to show is that the provisions of
the law of which he or she is complaining, violates a right guaranteed
by the
Constitution. According to learned counsel, if Article 140 of the Constitution
is read together with Article 86(1), a right
of appeal to the Supreme Court in
election petitions is guaranteed by the Constitution. On the other hand, s.67 of
the Parliamentary
Elections Act limits
the right of appeal to the Court of Appeal. Mr. Rwaganika therefore contended
that there was an apparent conflict between Articles
86(1) and 140 of the
Constitution and section 67 of the Act. The conflict needed to be interpreted by
the Constitutional Court. Therefore,
the learned Justices of the Constitutional
Court erred in law when they held that the petitions of the appellants did not
disclose
a cause of action. Counsel further contended that the learned Justices
further erred when they first determined the substantive issue
of whether the
appellants had a right of appeal to the Supreme Court before deciding on the
preliminary question of whether or not
there was a cause of action.
Article 86(1) of the Constitution vests in the High Court the power to hear Parliamentary Elections Petitions. Clause (2) of the same Article provides for appeals against the decision of the High Court. Article 86 does not preclude an aggrieved party from appealing to the Supreme Court. Therefore there seems to be an apparent right of appeal to the Supreme Court. That apparent right is reinforced by the provisions of Articles 132 and 140 of the Constitution. Article 132 stipulates that the Supreme Court shall be the final court of appeal. Article 140 which prescribes expeditious procedure to be followed by the High Court when hearing election petitions, provides, inter alia, that the same procedure will apply to both the Court of Appeal and the Supreme Court. It thus appears from the reading of the provisions of these Articles that any Act of Parliament which conflicts with the said apparent right prima facie, raises a question of interpretation for which the provisions of Article 137can be invoked. Article 137 provides in Clause (3) that:
"(3) A person who alleges that -
(a) an Act of Parliament or any other law or anything in or done under the authority of any law; or
(b) any act or omission by any person or authority, is inconsistent with or in contravention of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate."
The appellants assert in ground 3 that the learned Justices of Appeal erred when they held that the petition does not disclose a cause of action. In the case of Major General Tinyefuza v. Attorney General, Const. Appeal No. 1 of 1997 (S.C), (unreported), this court considered what is a cause of action in cases involving the interpretation of constitutional instruments. It was said that:
"A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a
judgment in court " (Per Oder, J.S.C).
In the case of Serugo v. Kampala City
Council, Const. Appeal No. 2/98 (S.C), certified edition, 1999-2000, it
was observed that generally,
"a cause of action in a plaint is said to be disclosed if three essential elements are pleaded namely, pleadings
i) of existence of the plaintiffs right,
ii) violation of that right and
iii) of the defendant's liability for that violation"
As for constitutional petitions, Mulenga, J.S.C. put it this way,
"A petition brought under this provision (Article 137(3) in my opinion, sufficiently discloses a cause of action if it describes the act or omission complained of and shows the provision of the Constitution with which the act or omission is alleged to have been contravened by the act or omission, and pray for a declaration to that effect."
In their petitions before the Constitutional Court, the appellants averred that:
"(a)
(b)
(c) The petitioner is aggrieved and dissatisfied with the judgment and decision of the Court of Appeal and wishes to appeal against the
said decision and judgment on issues involving points of law of great public importance requiring to be heard and decided upon by the Supreme Court but cannot appeal as the right of appeal to the Supreme Court has been barred by s.67(3) of the Parliamentary Elections Act, 2001.
(d) s.67(3) of the Parliamentary Elections Act, 2001 is inconsistent with Article 140 of the Constitution of the Republic of Uganda, 1995, and is therefore unconstitutional and null and void pursuant to Article 2(2) of the Constitution."
In their ruling, the learned Justices of the Constitutional Court made the following observations:
"In order for the petitioner to succeed, he has to show by his pleadings that the act of losing an appeal on 17th May raises a matter for constitutional interpretation. We are saying so, because the petitioner claims that the cause of action accrued to him on that day, and not on the 20th April, 2001 when the Act came into force. In our view, the act of losing an appeal per se does not call for the interpretation of the Constitution. Admittedly, the petitioner is an aggrieved party because he lost the appeal. This is not sufficient."
The learned Justices then concluded,
"Section 67(3) of the Parliamentary Elections Act provides that, "The decision of Court of Appeal under this section is final". According to the principles stated in Serugo (supra), the petitioner had to show that the provisions of the sections he is complaining about violated a right guaranteed by the Constitution. The instant petition does not allege those facts which allegedly contravene the provisions of the Constitution or those that are inconsistent with its provision. For these reasons we think the petition does not disclose a cause of action."
With the greatest respect, the learned Justices of the Constitutional Court
misdirected themselves on the pertinent constitutional
issues raised in the
petition. In my opinion, the issues were not whether the petitioners had lost
the appeal but whether they have
a right of appeal to Constitution. The
petitioners' prayer for a declaration that they had a right to appeal all the
way to the Supreme
Court was not answered by the learned Justices of Appeal. In
my view, the constitutional provisions I have examined and their relationship
with s.67(3) of the Parliamentary Elections Act, 2001, were pertinently raised
by the petitioners and brought their complaint within
the meaning of Article
137(3) as to require interpretation. In my opinion, the petitions raised a
sufficient cause of action which
the Constitutional Court ought to have
considered and resolved but did not do so.
In a number of cases such
as Attorney General v. Major General Tinyefuza, Constitutional
Appeal No. 1 of 1997 (S.C.) and Serugo v. Kampala City Council,
Constitutional Appeal No. 2 of 1998 (S.C.) this court has expressed the view
that in constitutional petitions brought under Article
137(3) of the
Constitution, a cause of action is disclosed if the petitioner alleges the act
or omission complained of and cites
the provision of the Constitution which has
been contravened and prays for a declaration. In my opinion therefore, ground 3
of the
appeal ought to succeed.
Ground 1 complains that the learned Justices of appeal misdirected themselves
when they ruled on the substantive matter of the jurisdiction
of the Supreme
Court before they were addressed on the matter. In arguing this ground, counsel
for the petitioners did not cite any
authorities. In my opinion however, a court
is entitled to consider and determine any issues before it without having to
place them
in any order of preference provided it subsequently gives its reasons
for deciding each of the issues. In my viewr therefore there is no
merit in ground 1 of the appeal and it ought to fail.
Finally, I turn
to ground 2 of the appeal. Firstly, I am constrained to observe that where a
tribunal is asked specifically to rule
on any matter before it and fails to do
so or rules on entirely different proposition of its own volition its decision
cannot be
said to be final on the matter it was asked to rule on in the first
instance.
In their petitions, the appellants asked the Constitutional Court to declare
that they had a right of appeal from the Court of Appeal
to the Supreme Court.
The Constitutional Court, having decided that there was no cause of action
failed to consider the matter raised
by the petitioners. Mr. Rwaganika, learned
counsel for the appellants submitted that Article 140 of the Constitution read
together
with Article 86(1) provide the procedure to be followed when courts are
dealing with petitions and Article 140(1)(c) in so far as
it provides a similar
procedure to be followed in the Supreme Court implies that there is a direct
right of appeal to that court.
The Constitutional Court ought to have made a
decision on the apparent conflict between the Constitutional provisions and
those of
the Parliamentary Elections Petitions Act, 2001. This, the
Constitutional Court failed to do. Consequently, ground 2 of the appeal
ought to
succeed.
I would therefore allow this appeal. I would order that the petitions be
remitted to the Constitutional Court for determination on
merit.
As there was no respondent in this appeal, I would make no order as to
costs.
Dated at Mengo, this 26th day of November 2003.
[1] There is a distortion by omission in the quotation from my judgment in Ismail Serugo's case. In full it should read: "A petition brought under this provision, in my opinion, sufficiently discloses a cause of action, if it describes the act or omission complained of, and shows the provision of the Constitution with which the act or omission is alleged to be inconsistent or which is alleged to have been contravened by the act or omission, and prays for a declaration to that effect." See Certified Constitutional Appeal Judgments, 1999-2000, at p.186.
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